State v. Sock, 87-323
| Decision Date | 19 February 1988 |
| Docket Number | No. 87-323,87-323 |
| Citation | 419 N.W.2d 525,227 Neb. 646 |
| Parties | STATE of Nebraska, Appellee, v. Cheryl A. SOCK, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Pretrial Procedure: Motions to Suppress: Appeal and Error. In a criminal trial, after a pretrial hearing and order overruling a defendant's motion to suppress evidence, the defendant must object at trial to admission of the evidence which was the subject of the motion to suppress in order to preserve a question concerning admissibility of that evidence for review on appeal.
2. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeal, and, as such, its review is limited to an examination of the county court record for error or abuse of discretion.
3. Sentences: Courts: Appeal and Error. A district court may modify a sentence imposed by a county court only where the county court has so abused its discretion as to render its sentence an error upon the record presented.
James R. Mowbray of Mowbray, Chapin & Walker, P.C., Lincoln, for appellant.
Norman Langemach, Jr., Lincoln City Prosecutor, for appellee.
Defendant was convicted in the county court for Lancaster County of driving while intoxicated (DWI); she was sentenced to a 6-month term of probation. Upon appeal to the district court, her conviction was affirmed, and her term of probation was extended from 6 months to 1 year. Defendant appeals, assigning two errors: (1) The district court should have found that the county court erred in denying defendant's motion to suppress; and (2) the district court erred in extending her term of probation. We affirm as modified.
Since defendant does not challenge the sufficiency of the evidence proving the State's case, the facts are briefly stated.
About 12:10 a.m. on September 25, 1986, defendant, Cheryl A. Sock, was stopped by Lincoln Police Officer Patrick L. McGuire in downtown Lincoln, when defendant drove a vehicle through a red traffic light signal. Officer McGuire detected evidence of defendant's intoxication, placed her under arrest for DWI, and transported her to the county-city building, where an Intoxilyzer Model 4011AS test was performed which registered .184 percent by weight to volume of alcohol in defendant's body fluids.
At a pretrial motion to suppress hearing on January 7, 1987, there was a close evidentiary question as to probable cause; however, the motion was denied. Prior to the trial that immediately followed, Sock's counsel informed the court, "If we go beyond the motion to suppress, we're gonna be stipulating to the test and only then take evidence as to opinion evidence from the State's witness as well as our witnesses."
At the trial, Officer McGuire testified without objection to most of the facts covered in the suppression hearing, and, in addition, that there was a strong smell of alcohol about defendant, her eyes were bloodshot and watery, her voice was slurred, she was unsteady on her feet, and, in his opinion, defendant was under the influence of alcoholic beverage at the time of her arrest. Counsel also stipulated
that if Officer McGuire were asked to testify to these matters that he would in fact testify that he has been properly trained and qualified and has a permit to obtain a sample of breath on an Intoxilyzer 4011AS and that he, in fact, used that machine on September 25, 1986, tested the breath of the defendant. And that the test result properly conducted under the rules of the State of Nebraska the test result was .184 percent by weight to volume of alcohol in the defendant's body fluids.
The first assignment presents the narrow issue wherein defendant relies on State v. Van Ackeren, 200 Neb. 812, 265 N.W.2d 675 (1978), holding that the denial of a motion to suppress (search and seizure issue) may be preserved on appeal without either renewing the motion or objecting to the evidence at the trial. That rule was changed in State v. Roggenkamp, 224...
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State v. Plant
...admission of the evidence which was the subject of the suppression motion in order to preserve the question for appeal. State v. Sock, 227 Neb. 646, 419 N.W.2d 525 (1988); State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987). Thus, we concern ourselves with only the out-of-court statements......
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State v. Horr
...court in a criminal case, the district court acts as an intermediate appellate court, rather than as a trial court. State v. Sock, 227 Neb. 646, 419 N.W.2d 525 (1988); State v. Painter, 224 Neb. 905, 402 N.W.2d 677 (1987); State v. Daniels, 224 Neb. 264, 397 N.W.2d 631 (1986); State v. Thom......
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State v. Davis
...of evidence even though it was earlier considered at a hearing on a motion to suppress, which motion was overruled. State v. Sock, 227 Neb. 646, 419 N.W.2d 525 (1988). Regarding the statement made to the police, the defendant argues that there was no basis for suspecting him of criminal act......
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State v. Styskal, S-91-042
...and as such, its review is limited to an examination of the county court record for error or abuse of discretion. State v. Sock, 227 Neb. 646, 419 N.W.2d 525 (1988). Both the district court and the Nebraska Supreme Court generally review appeals from the county court for error appearing on ......